EXHIBIT 4.10
JOINDER AND AMENDMENT NO. 1 TO
SECURITIES EXCHANGE, PURCHASE AND HOLDERS AGREEMENT
THIS JOINDER AND AMENDMENT NO. 1 TO THE SECURITIES EXCHANGE,
PURCHASE AND HOLDERS AGREEMENT (the "Amendment") dated as of December 2, 2002,
by ERICO GLOBAL COMPANY, a Delaware corporation (the "Company"), CITICORP
VENTURE CAPITAL EQUITY PARTNERS, L.P., a Delaware limited partnership, CVC
EXECUTIVE FUND LLC, a Delaware limited liability company, CVC/SSB EMPLOYEE FUND,
L.P., a Delaware limited partnership (collectively, the "Fund"), WILLIAM ROJ
("Roj") and those individuals and entities listed on Exhibit A-3 hereto (the
"CVC Co-investors") amends the Securities Exchange, Purchase and Holders
Agreement (the "Agreement"), dated as of July 31, 2002 by and among the Company,
the Fund, Roj and the other individuals listed on the signature pages thereto.
Background
A. Pursuant to Section 1.1(c) of the Agreement, the Fund
has the right to purchase the number of shares of Class L Common Stock equal to
the product of 7,290,000 minus the number of Rollover Shares acquired by the
Management Investors (the "Fund Shares") at a purchase price of $11.00 per share
of Class L Common Stock.
B. The Fund desires that a portion of the Fund Shares be
purchased directly from the Company by the CVC Co-Investors.
C. The parties to the Agreement desire to amend the
Agreement upon the terms and conditions and in the manner set forth below.
D. Capitalized terms used but not defined herein shall
have the meaning ascribed to such term in the Agreement.
Terms
In consideration of the respective covenants contained herein
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Section 1.1(c) of the Agreement. Section 1.1(c) of
the Agreement is hereby amended and restated to read, in its entirety, as
follows:
"(c) The Company will issue and sell to the Fund
the number of shares of Class L Common Stock equal to the product of
7,290,000 minus (i) the number of Rollover Shares acquired by the
Management Investors and (ii) the number of shares acquired by the CVC
Co-Investors (as defined below), at a purchase price of $11.00 per
share of Class L Common Stock.
2. Section 1.1(d) of the Agreement. A new Section 1.1(d)
shall be added to the Agreement reading, in its entirety, as follows:
"(d) The Company will issue and sell to each of
and those persons and entities listed on Exhibit A-3 hereto (each, a
"CVC Co-Investor") the number of shares of Class L Common Stock set
forth opposite such CVC Co-Investor's name on Exhibit A-3 hereto at a
purchase price of $11.00 per share."
3. Joinder to Agreement.
a. Each CVC Co-Investor agrees to become bound
by the terms and conditions of the Agreement, to become entitled to the benefits
of the Agreement and to become a party to the Agreement as an "Investor" with
the same effect as if such Investor had executed the Agreement on and as of the
original date thereof.
b. Each CVC Co-Investor hereby represents and
warrants that all representations and warranties of an "Investor" contained in
the Agreement are true and correct as to the CVC Co-Investor as of the date
hereof.
4. Closing; Termination. The closing (the "Closing") of
the issuance of the Securities will take place immediately prior to the closing
under the Merger Agreement at such date and time as selected by the Company and
Roj (the "Closing Date"). At the Closing, the Company will deliver to each CVC
Co-Investor certificates evidencing the number of shares of Class L Common Stock
being acquired by such CVC Co-Investor.
5. Conditions to the CVC Co-Investor's Obligations. The
obligation of each CVC Co-Investor to deliver the ERICO Shares, cash or other
consideration at the Closing is subject to the satisfaction on or prior to the
Closing Date of the conditions set forth in Section 1.3 of the Agreement.
6. Conditions to Company's Obligations. The obligations
of the Company to issue the Shares at the Closing are subject to the
satisfaction on or prior to the Closing Date of the conditions set forth in
Section 1.4 of the Agreement.
7. Miscellaneous.
a. Continued Effectiveness of Agreement. Except
as specifically amended above, all terms of the Agreement shall remain unchanged
and in full force and effect.
b. Successors and Assigns; Entire Agreement.
This Amendment and all of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns and executors, administrators and heirs. This Amendment,
together with the Agreement, sets forth the entire agreement and understanding
among the parties as to the subject matter hereof and merges and supersedes all
prior discussions and understandings of any and every nature among them.
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c. Governing Law. The validity, performance,
construction and effect of this Amendment shall be governed by and construed in
accordance with the internal law of Delaware, without giving effect to
principles of conflicts of law.
d. Headings.The headings in this Agreement are
for convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect its meaning, construction or effect.
e. Counterparts. This Agreement may be executed
in two or more counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original, and all of
which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
ERICO GLOBAL COMPANY
By: /s/ Jeffrey R. Steinhilber
-------------------------------
Name: Jeffrey R. Steinhilber
Title: Vice President and Chief
Financial Officer
CITICORP VENTURE CAPITAL EQUITY
PARTNERS, L.P.
By: CVC PARTNERS, LLC, its General
Partner
By: /s/ Michael A. Dunleavy
-------------------------------
Name: Michael A. Dunleavy
Title:
CVC EXECUTIVE FUND LLC
By: CITIGROUP VENTURE CAPITAL GP
HOLDINGS, LTD., its Managing Member
By: /s/ Michael A. Dunleavy
-------------------------------
Name: Michael A. Dunleavy
Title:
CVC/SSB EMPLOYEE FUND, L.P.
By: CVC PARTNERS, LLC, its General
Partner
By: /s/ Michael A. Dunleavy
-------------------------------
Name: Michael A. Dunleavy
Title:
Signature Page - Joinder and Amendment No. 1 to
Securities Exchange, Purchase and Holders Agreement
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment the day and year first above written.
MANAGEMENT INVESTORS:
/s/ William Roj
-----------------------------------
William Roj
19200 North Park Boulevard
Shaker Heights, Ohio 44120
CVC CO-INVESTORS
/s/ Michael T. Bradley
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Michael T. Bradley
/s/ Charles Corpening
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Charles Corpening
/s/ Michael A. Delaney
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Michael A. Delaney
/s/ Richard Mayberry
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Richard Mayberry
/s/ Thomas McWilliams
-----------------------------------
Thomas McWilliams
/s/ David Thomas
-----------------------------------
David Thomas
/s/ John Weber
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John Weber
Signature Page - Joinder and Amendment No. 1 to
Securities Exchange, Purchase and Holders Agreement
Exhibit A-3
Shares of Class Aggregate
Name L Common Stock Purchase Price
- ---- --------------- --------------
Michael T. Bradley 336 $ 3,696
Charles Corpening 1,673 $ 18.403
Michael A. Delaney 33,464 $368,104
Richard Mayberry 6,693 $ 73,623
Alchemy, L.P. 1,673 $ 18,403
David Thomas 33,464 $368,104
John Weber 1,673 $ 18,403